Thursday

Jul 3, 2014 at 1:01 AM

When DNA comes up in a criminal investigation, people listen. DNA is “the gold standard” of forensic science, nearly beyond question when it comes to a criminal conviction or exoneration. Many believe the identifying power of DNA is infallible and, as a result, treat it as an absolute form of evidence, rather than any other form of trace evidence.

According to the Innocence Project, there have been 316 post-conviction DNA exonerations in the United States. Eighteen of those exonerated through DNA served time on death row. On the other hand, there have been countless convictions for everything from burglary to murder based on DNA evidence. Some of those cases had gone cold with little hope of being solved.

However, this idea of DNA infallibility has come into question in recent years with the news about errors in DNA testing. Last year, the New York City medical examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician.

According to the ABA Journal, a former chemist at a lab in Boston was indicted on 27 counts of obstructing justice, tampering with evidence, perjury and other charges in connection with her handling of some of the thousands of cases she analyzed. Similar action has been taken in labs in St. Paul, Minnesota; Oklahoma City; and Nassau County, New York.

There will always be concern with the human element involved in DNA analysis — whether it be incompetence or maliciousness. However, there has been a burgeoning concern, although never proven, that a criminal prosecution could be based on the transference of DNA evidence. An honest and competent analyst could obtain DNA from a crime scene that was accidentally transferred there.

The concern has been substantiated. Lukis Anderson, a homeless alcoholic from San Jose, California, was implicated by DNA in the murder of a Silicon Valley millionaire in 2012.

DNA can be deposited at a crime scene in many different ways — a drop of blood, a hair, a flake of skin, even dandruff. Any of those things can be accidentally transferred from one location to another. Unlike a fingerprint, which cannot be inadvertently lifted from the wall in one building to the wall in a second building, DNA can be accidentally carried from one location to another.

According to the San Jose Mercury News, in Anderson’s case lawyers proved that paramedics who had treated him on the streets of downtown San Jose inadvertently transferred his DNA to a murder scene when they responded to that that location.

Anderson’s DNA was transferred to the murder scene by paramedics via a simple oxygen-monitoring probe they clipped first onto Anderson’s finger and then onto the dead man’s finger.

The case is believed to be the first in the nation in which transferred DNA evidence was shown to have falsely placed an innocent person at the scene of a crime.

“Before, we just had hypotheticals, stuff that DAs would say was smoke and mirrors,” Deputy Public Defender Kelley Kulick, who handled Anderson’s case, told The Mercury News. “Now, there is a case to support it.”

In a 2010 article in Investigative Genetics, the authors warned, “Greater effort needs to be made by police/crime investigators to investigate how a DNA sample arrived at the location where it was found … [a]wareness of these variables, and their impact on transfer events, will assist in weighting the likelihood of proposed alternative scenarios.”

Practitioners have long been concerned about the future possibility of accidental DNA transference playing a prominent role in a criminal prosecution — the future is now.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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